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The New York Times has a front page article this morning about the Obama Administration’s failure to fill judicial vacancies, especially in comparison to previous administrations. This has long been a subject of griping among many on the left as seeming negligence or oversight on the part of the White House. It’s revealed today to be the result of an intentional strategy.
But a good portion of Mr. Obama’s judicial record stems from a deliberate strategy. While Mr. Bush quickly nominated a slate of appeals court judges early in his first year — including several outspoken conservatives — Mr. Obama moved more slowly and sought relatively moderate jurists who he hoped would not provoke culture wars that distracted attention from his ambitious legislative agenda.
The White House in that first year did not want to nominate candidates who would generate rancorous disputes over social issues that would further polarize the Senate,” said Gregory B. Craig, Mr. Obama’s first White House counsel. “We were looking for mainstream, noncontroversial candidates to nominate.”
This will likely dismay those, who for good reason, emphasize the importance of judicial nominations. After all, federal judges serve for life and play crucial roles in shaping and interpreting the law. But, in a White House consumed with battling the financial crisis and implementing an ambitious domestic policy agenda, judicial nominations were just less of a priority.
This can be addressed if Obama wins a second term. After all, he’ll have four more years to make up for lost time at the beginning of his administration. But, if not, it will give Mitt Romney a nearly unprecedented opportunity to remake the federal judiciary in his own image.
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DAY on August 18, 2012 9:40 AM:
Obama could nominate Solon, and the Republicans in the senate would 'put a hold' on him.
(Solon was an Athenian statesman, lawmaker, and poet. He is remembered particularly for his efforts to legislate against political, economic, and moral decline in archaic Athens.)
c u n d gulag on August 18, 2012 10:08 AM:
Yes, this makes PERFECT sense!
Because trying placate the right, in order not to make too many waves, has worked out so well in every other part of government over the past 4 years.
Here's what President Obama and the rest of the Democrats need to remember:
To Conservatives, "bipartisanship" is defined as total capitulation by everyone else.
Look, Conservatives are going to hate you whether you do something or don't do it.
So, JUST DO IT FOR FECK'S SAKE!!!!!!!!!!!!!!!!!!!!!
Vic78 on August 18, 2012 10:19 AM:
They filibustered ALL of his appointments. The GOP made the decision to go against anything the President tried to do. Everything's a fight for him.
Neildsmith on August 18, 2012 10:38 AM:
Liberals are going to have to stop relying on the courts to advance our policy agenda. If you want to expand civil rights, change the culture and the government won't matter. Gay rights are a great example. People led the effort, not politicians and certainly not the courts.
Diane Rodriguez on August 18, 2012 10:52 AM:
A second term won't change Republican obstructionism. Congressional Obama haters won't go away, they'll double down. They have never seen Obama as having a "mandate". The Republican mandate supersedes any voter mandate. It's a race and socio-economic based birthright which changing demographics makes a dangerous and desperate position. Obama will have to make populating the bench a priority and adopt a very aggressive approach. It is likely Justices Stevens and Ginsberg will have to be replaced under his term.
c u n d gulag on August 18, 2012 10:55 AM:
Neildsmith,
Yes, we Liberals need to stop relying on the courts to advance our policy agenda(s), and totally cede that territory to the Conservatives.
They will be eternally grateful if we do so.
Since 1968, we have had 7 Republican Presidential terms, compared to 3 3/4's for Democrats - and now we find that President Obama DIDN'T take the opportunity to put on some more moderat/centrist judges on the Federal bench - since that's ALL Democratic Presidents are allowed to do.
Care to guess who's been stacking the court deck with "Activist" jokers?
Hint: It ain't been the Democrats!
nemisten on August 18, 2012 10:59 AM:
Well said DAY and c u.
@ Neil: Many (most?) culture changes may have started with the people, but were then pushed forward by the Courts and their enforcement of laws.
People must lead the effort, but without the laws/Courts to enforce, a tyranny of the majority -- and even a minority -- can reign a long, long time.
Larry Reilly on August 18, 2012 11:08 AM:
Clinton did pretty much the same thing. Foolish.
The Republicans figured out three decades ago that judges matter. They have conscientiously worked at putting their farthest right fringe on the bench, young ones at that.
And the Dems, when they've finally put someone on the bench, have gone for moderates who thus won't rankle......the right's farthest fringe.
Is it any wonder that the playing field has been re-chalked such that that the middle is what used to be the far right?
cmdicely on August 18, 2012 11:23 AM:
That's unlikely, unless something changes from the way things are going now: all indications are that the Democrats are likely to have a narrower majority in the Senate if they retain one at all, and somehow I doubt the Republicans will be less obstructionist.
The only way this can be addressed is if the Democrats retain a majority and the filibuster is abolished entirely or, at a minimum, reformed so as not to be available for executive appointments.
Neildsmith on August 18, 2012 11:53 AM:
c u n d gulag and nemisten: I'm not ceding anything to conservatives, but the federal courts are never going to create new rights or new progressive policies. We want to use the courts because we are losing the political debate.
Josef K on August 18, 2012 12:06 PM:
Disappointing, but then not very surprising. The President is a politician, after all, not a paragon. Plus given President Obama's natural tendency to negotiate and seek consensus, he probably calculated he'd get more out of Congress than he did.
I doubt he fully appreciates how his public standing has been eroded by the perception of weakness. Neither did Louis XVI, and look how that turned out for him.
c u n d gulag on August 18, 2012 12:22 PM:
neil,
Did Gore lose the political debate, when he had a 500,000 vote lead in the popular debate? And a heavily contested recount going on in Florida, before it was stopped.
No, the SCOTUS decided that little political debate.
Oh, and the "Brooks Brothers Riots" weren't exactly a debate, more like a class play - literally, a "class" play.
And with polling decidely against "Citizens United - Not Timed" (you all know the acrnonym by now), do corporations now have the same right of "Free Speech" as people do, because we lost the political debate there, as well?
No, the SCOTUS decided that little debate, too.
We on the left lose more than our fair share of political debates.
But the political debates where we're winning, or about to win, are often decided in the State and Federal courts.
Care to guess as to the outcome if Obama and Romney come close in the political debate known as The Presidential Election, and who'll decide that?
Who?
Well, this time, since it's a heavily Republican House, it may not be the SCOTUS.
But the 5 Conservative Justices, they'll be there backing that play up, you can be sure.
In the best of all possible worlds and nations, we'd have legislators who had the courage of their convictions.
Conservative, as well as (what's known as) Liberal.
But, too often, the Congress leaves the laws vague enough so that the Federal Courts get to make the real decisions. This takes the onus off of elected officials. Particularly since those courts have been stacked in the Republicans favor for over 4 decades.
Anyone remember that fairly recent article that stated that?
Was it here in WaMo?
I can't remember where I read it - or, in all honesty, I'm too damn lazy today to try and find it.
To sum up - the Federal Courts DO matter.
Too often, the are the final arbiters of our political debates.
Neildsmith on August 18, 2012 1:14 PM:
All the issues we care about can be solved by electing robust majorities to Congress, state legislatures, and city councils. They can be solved by electing progressive presidents, governors, and mayors. If we are relying on the courts to be the final arbiters of our political debates, that means we lost the debate. Speaking for myself, I am not interested in having my idea implemented against the wishes of half of my fellow citizens. If that means we don't get universal health care or some other great progressive idea implemented, well, so be it.
c u n d gulag on August 18, 2012 1:52 PM:
neil,
A good chunk of that other half of our fellow citizens would gladly use any and every thing to turn this country into a Domionist Christian Plutocracy.
And another part will go along, even if it's detrimental to themselves and their families.
Propaganda does that to people.
So does an intimidated, allegedly "Free," Fourth Estate, which is afraid of being accused of "Liberal bias" every time they point out anything critical about Conservatives and Republicans.
And powerful Conservative people and interests are using Conservative politicians and State's courts, that are also dominated by fellow Conservatives, to make sure that a good chunk of the half that opposes them - aka: the rest of us - can't vote, or, feel that it's become such a hassle that it's NOT worth it.
And then, with some of our half's votes suppressed/compromised, when a Republican House and Senate pass laws that allow all sorts of what most would consider "un-American" ideas, like the elimination of restrictions against merging church and state, and President Romney signs them, and if/when they're contested, they will end up in the Federal Courts, eventually in the Supreme Court, where those "un-American" ideas will now become settled law when those courts approve them.
And once they are settled law, because these Federal Court position are lifetime ones, you can look for many decades as justices will use "stare decisis" in upholding those Conservative laws.
Even if there's a political debate, and Liberals and Progressives elect a wildly Liberal President, and huge majorities of Liberals and Progressives in both houses of Congress, it will take decades to undo those decisions.
And the only way those laws will be overturned, is either if we put more Liberal and Progressive judges on all levels of the courts, or, there's some way that the Congress and the President can change how our judicial system works, and the impact it has.
And THAT, would take a Constitutional Amendment.
No easy task, that...
So, I maintain that the courts DO matter! A LOT!!!
We could be at this all day, neil.
Maybe we should just agree to disagree, eh? :-)
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Neildsmith on August 18, 2012 2:41 PM:
c u n d gulag: We don't disagree over policy, we disagree over strategy. We've accomplished alot over the years - far more than I ever imagined. Little of that, however, has come from government. Societal change has come from people like you and me making our point to family, friends, and co-workers. And even though the politics seem disheartening at the moment, I think we can all be proud of our progress. I suspect we've gotten out ahead of the American public. It doesn't help that the Democratic party embraced low taxes, deregulation and free trade, although I can hardly complain. I've benefitted greatly from it all just like many upper middle class college educated professionals.
We're in for a period where our goals may have to be put on hold while America catches up, but that's OK, they are coming our way.
But I also think the we've lost the elderly to the GOP. I question the wisdom of advocating policies that benefit them in light of their support for the enemy. We'll find out in November how much we've lost, but if Romney is elected, I will relish punishing the elderly for their poor choice.
exlibra on August 18, 2012 6:34 PM:
But I also think the we've lost the elderly to the GOP. -- Neildsmith, @2:41 PM
At our (combined -- county and two small towns) Dem HQ, the only person under 55 is the (paid) OFA staffer. The rest of us -- those sitting there all day answering the phones, making the signs, washing the windows, doing a bit of phone-banking, canvassing, voter registration etc (whatever day-to-day work needs to be done) -- are eligible for the Senior Citizen Discount day at Kroger's (and we use it, too). My husband was almost 88 when he died in March and, while unable to expend much physical effort, was always ready with a check to help support Dem efforts.
Same's pretty much true about the monthly committee meetings and showing up for parades and fairs (just so people know there are Dems, even in our rural south-western corner of VA); it's the tottering oldsters that show up "all fired up and ready to go", not the young ones. Don't know whether it's simply that the young ones don't have as much time as we do (being gainfully employed), or whether it's hard to find baby sitters or what, but that's what the situation here is. So, please, don't swipe us all out with some facile pronouncement.
c u n d gulag on August 18, 2012 6:42 PM:
exlibra,
I'm heartily sorry for your loss.
My father was 86 when he passed away in April, and he too, was a Democrat.
A bit of an old school slightly centrist one, who sometimes refused to admit that the Republicans had gone insane, but a Democrat who contributed to President Obama, to the last.
Keep up the good fight!
I know I sometimes talk about secession, but that's only because I'm a jackass.
We need to find a way to wake-up over half of the country.
And HERE'S a man who can make it happen, a 92 year-old WWII veteran, writing a poem sticking it to Mitt:
http://www.youtube.com/watch?feature=player_embedded&v=JmEZxw_APPg
And at the end, he's saying, "Four more years!" for President Obama.
The Democrats need to edit that 6+ minute interview and poem, and turn it into a series of ads.
Neildsmith on August 18, 2012 7:29 PM:
exilbra - good for you and all your friends. We need all the help we can get. Unfortunately...
"Democrats eager to tell seniors President Obama will protect them from Republican vice presidential candidate Paul Ryan have a problem: Florida seniors want Ryan to protect them from Obamacare, a new poll suggests. In Florida, “48 percent of the state’s voters fear the president’s health care law more than Ryan’s proposal when it comes to Medicare,” Rasmussen found in a survey of 500 likely voters (subscriber content). “Just 41 percent fear Ryan’s proposal more.” Ryan’s lead over Obama is even larger among senior citizens, of whom “54 percent are more fearful of the president’s plan.” Overall, Romney leads Obama."
http://www.lucianne.com/thread/?artnum=696151
It's facinating to see the GOP pit the elderly against the poor and uninsured. I guess we'll see how much our support for Medicare gets us. I fear we're all going to learn how true is the saying "No good deed goes unpunished."
Doug on August 18, 2012 7:49 PM:
Neildsmith, seeing as that's a Rassmussen poll, you MIGHT want to check its' internals. Heaven forbid I should cast any aspersions, but an awful lot of a response to a poll depends on HOW the question was phrased. To be fair, and AFAIK, Rassmussen doesn't ask questions such as "Would you vote for X if he stopped beating his wife?"
Yet...
Neildsmith on August 18, 2012 8:18 PM:
Hi Doug! There is lots of polling data suggesting that selfish seniors are prepared to abandon the democratic party over our support for health care reform. I am just in awe of the attempts by the GOP to get votes from seniors over this issue.
"In front of thousands of Florida seniors, Republican vice presidential hopeful Paul Ryan made a highly emotional appeal for his Medicare reforms and slammed a 15-member board charged with slowing the cost growth of the popular entitlement program."
http://www.cbsnews.com/8301-503544_162-57495919-503544/ryan-in-fla-makes-emotional-pitch-for-medicare/
Awesome. As I said, it will be interesing to see if senior citizens screw over progressives for trying to help poor people. Ouch!
IOKIYAR(ight-wing) on August 19, 2012 8:54 AM:
Republicans have been using the courts as a bludgeon for decades.
Republicans used the Republican Supreme Court to steal the election in 2000.
Republicans subsequently further packed the Supreme Court and the Federal Courts with right-wing extremist Judges for another eight years and have been systematically using the extreme right-wing Supreme Court and Federal Courts to systematically screw anyone without money.
Right-wing enablers like "Neil D Smith" think that's okay and that any complainers should just surrender to right-wing judicial activists.
gdb on August 19, 2012 9:28 AM:
Keep dreaming. What you see in the first term is what you'll get in a second. If BHO is re-elected, he enables the far right. And if the economy declines badly after he is re-elected (a VERY good bet for sometime in the next year), Repubs will run against BHO as the Dem's Hoover for a generation. It grim, but probably the best hope for moderte/progressives is for that economic crisis to occur by mid-October-- and let Mittens rather than BHO fail to solve it.
Doug on August 19, 2012 8:44 PM:
I see gdb is STILL pouting over not getting that unicorn...